In-Person Vs. Virtual Trials in Times of COVID-19
COVID-19 has completely changed the way we do nearly everything in life. From going to the store to family gatherings, things are different. The effect of COVID-19 is especially salient in the court system. In the United States, our court system provides justice in both criminal and civil contexts. However, COVID-19 has brought this fundamental system to a near-complete halt. Court cases have not been progressing and many cases, especially civil cases, have been pushed back to 2021 or later. Realizing the problem, the court system quickly implemented alternative methods for conducting trials and hearings. These alternative methods mainly revolve around virtual meetings. This is to protect all those involved from catching COVID-19 but is an unprecedented change to a system that has been mostly unaltered for over 240 years. So now, veteran attorneys have to adjust to this new normal. Some states are allowing in-person trials with heightened precautions, such as masks and plexiglass boxes, to protect jurors and attorneys, however, they differ drastically from that of in-person trials before COVID-19. So, in the times of COVID-19, how do in-person trials and virtual trials compare in the important aspects of trial?
Comparing the Two Options
The type of trial can have significant effects on multiple facets of court cases, including costs, logistics, and technical difficulties. Though you may think that choosing in-person court trials would be a no-brainer, there are some limitations and problems with in-person trials specifically due to COVID-19 and may be permanent going forward, even with a vaccine. Let’s dive a bit deeper into the comparison.
The bottom line is cost matters. If COVID-19 were to have happened 20 years ago when computers were more expensive and it was nearly impossible to store the mass amounts of data needed for virtual trials, they would not be possible. However, in modern day, virtual trials are quite easy and cheap to conduct. Nearly everyone has the technology necessary to video themselves and Zoom is free to use, especially if the jurisdiction is running the meeting. Virtual trials are simply cheaper for both the attorneys and the courts. There is less need to show up in person for anything during preparations and if you can conduct all pre-trial and discovery remotely as well as the actual trial itself. Going virtual could save quite a bit of money. However, it may be easy for virtual trials to end up costing more if firms over-prepare for the trial due to fear of something new and they want to practice before going into trial.
Regardless, in the end, virtual trials should be significantly cheaper than in-person trials. Most of the cost savings come from the remote depositions and the simplified logistics in that process compared to in-person depositions.
Winner: Virtual Trials
The logistics of both forms of trials during COVID-19 are quite difficult. If one were to have an in-person trial, everyone must wear a mask or facial covering, be sat six feet apart, and likely be separated by plexiglass. Additionally, a portion of the jurors are not going to be comfortable and may be able to opt out of jury duty for these reasons. Some jurisdictions even move the jurors to a whole different building where they video call into the trial, causing even more logistical problems.
Virtual trials are difficult as well. There is a need for everyone to have the necessary technology and software as well as be able to work them efficiently. They must have their video on, their audio on, stay centered in the picture, and hopefully have no technological issues. But, all jurors should be able to participate in virtual trials compared to that of in-person. Most importantly, virtual trials can likely be done much sooner than in-person trials due to the mass amounts of preparation needed to conduct in-person trials during COVID-19. These virtual trials save large amounts of time and can expedite the process much quicker than that of in-person trials.
Court is already stressful for those involved. For attorneys, it is already taxing to prepare for in-person trials but virtual trials may take even more preparation since they are new and constantly changing as they progress. For jurors, virtual trials are far more relaxed and safe, but can also be more stressful because of the technological issues and the need to take the entire process seriously while not in a courtroom. For the courts, both virtual and in-person trials are taxing because they both take mass amounts of preparation time from them. For virtual trials, they must have a strong understanding of the logistics involved and be able to conduct a trial from start to finish with little problems and solutions to any problems that may arise. In-person trials, on the other hand, are much different than pre-COVID-19. Courts now have to take dozens of precautions to ensure the safety of everyone involved and this puts a massive amount of strain on them as well.
Presentations and Visualizations
One would think that in-person trials would be the easy pick here. However, in-person has the dilemma of the numerous precautions that courts are taking. The use of masks and plexiglass make it very difficult to conduct presentations, opening and closing statements. Attorneys have lost their non-verbal communication and even their verbal communication is altered by the plexiglass and glares. But, virtual trials bring a whole different form of hurdles for presentations and visualizations. There becomes a question of how an attorney can present their case via Zoom. Do they use a PowerPoint with their face in the corner? Do they use a projector that they stand in front of? Do they convert a large flat-screen TV into a touch screen to do their presentations and visualizations? It becomes a mess and has a large learning curve that very few are well-versed in this early into courts resuming.
Interruptions are a major problem when using virtual trials and even for in-person trials during COVID-19. For virtual trials, technological problems can be catastrophic. What happens if you have two jurors who have no video feeds? What if jurors do not pay attention and are on their phones? What if the internet goes out? There are additional problems with in-person trials, what if a juror tests positive for COVID-19? For virtual trials, it doesn’t matter if they have no symptoms. What happens if a witness gets COVID-19? Can they replace him? Either way, it is a mess, but it seems that virtual trials may have much higher chances of interruptions than in-person.
Security issues have never been a major concern in trials. Attorneys keep their documents under lock and key or protected on their computer hard drives. However, virtual trials have caused some major problems with security and confidentiality. Zoom is a great platform but gives little protection to the proceedings. It is possible for hackers to get information from these meetings. This can be extremely problematic for high-profile cases. There have been guidelines and software created to help increase the security of the virtual proceedings but it is still a concern for many attorneys. Luckily, the federal government has begun using some virtual trial software meaning that security and confidentiality will be a major priority and effective solutions will likely be developed and put in place.
Preparations make or break a trial. During COVID-19 attorneys are having to prepare more than ever for their trials because they have extended periods of preparation along with many precautions added to in-person trials and a lack of practice for virtual trials. The longer periods of time can be a positive. It can allow attorneys to get more information and conduct more research and analytics to better understand their case. Yet, this also means they may need external resources and more money. Outside of a need for practice, preparations for virtual trials should be slightly easier because everything can be conducted remotely and entered remotely. The logistics are often easier meaning that things go more smoothly during discovery and pre-trial.
Which Is Better?
To the seasoned attorney, in-person trials are the clear favorite. However, for a young attorney who is tech-savvy, virtual trials provide an interesting proposition. If expensive experts are permitted to present from the comfort of their own office, this will eliminate additional major costs; costs which are usually a barrier to entry. The intimacy of a room provides an attorney with a captive audience. Digital lag or technical difficulties cut into that intimacy. The ability to confront one’s accuser is also diminished in this capacity as accusers may be able to hide behind a screen. In-person trials will always have the upper hand until attorneys become more comfortable and gain more practice with virtual trials.
The options for trials are not a simple dichotomy, there are also hybrid options. These hybrid options seem inevitable. Many believe these hybrid options need to be strongly considered moving forward. Hybrid options might include conducting trials in larger spaces outside of the courtroom, such as convention centers or hotel conference rooms to facilitate jury selection. Virtual Reality might provide a valuable solution to this problem. A VR camera with a 360-degree view of the courtroom. Both counsels, their clients, and witnesses will be present. Each juror could receive a set of VR glasses and watch the trial as they would if they were in the courtroom. However, this method is very expensive and most definitely in its infancy. Ultimately, these hybrid options may be the future of trials even post-COVID-19.
What Does the Future of Trials Look Like?
Well, it is like a moving target. The NBA, MLB, NFL, UFC, and other various sports organizations have come up with innovative approaches to resuming their events. The courts will do the same. However, there are many things to consider. What about mistrials? Wouldn’t it be possible for a losing side to argue that they lost due to technical difficulties rather than on the merits of the opposing counsel? For virtual and hybrid trials to be successful, all parties must concede that they will be understanding and helpful to the greater goal of getting cases heard.
What Can Jury Analyst Do to Help?
Jury Analyst can help firms and individual attorneys prepare for this new normal. We provide pre-trial research on theme development, argument effectiveness, compensation estimates, jury selection, and many other areas. We can help you practice your virtual trial methods and hone in on the most effective way to present your information, regardless of the trial type. We use real potential jurors from your local jurisdiction in all our research services and can provide you with robust and detailed results quickly and efficiently.
To learn more about Jury Analyst, check out our website at JuryAnalyst.com.